McIntyre v. E. E. Forbes Piano Company

• Decision Date: 20 November 1911
• Citation: 100 Miss. 517,56 So. 457
• Court: Mississippi Supreme Court
• Parties: J. N. MCINTYRE ET AL. v. E. E. FORBES PIANO COMPANY

56 So. 457

100 Miss. 517

J. N. MCINTYRE ET AL. v. E. E. FORBES PIANO COMPANY

Supreme Court of Mississippi

November 20, 1911

October 1911

APPEAL from the chancery court of Hinds county, HON. G. G. LYELL Chancellor.

Suit by J. N. McIntyre against E. E. Forbes Piano Company. From a decree for defendant, plaintiff appeals.

The appellant, McIntyre, a resident of the city of Jackson county of Hinds, state of Mississippi, filed suit in the chancery court of said county against the defendant (appellee here), a non-resident corporation, praying an injunction restraining the prosecution by defendant of a replevin suit brought in the circuit court for the possession of a piano and for a redemption from the lien sought to be enforced by the defendant; complainant also asserting a set-off or counterclaim against the defendant. The chancellor granted a temporary injunction upon execution of the required bond, and afterward defendant answered, denying that the complainant had any equity of redemption in the piano, but that the title remained in defendant until all notes for the purchase price were paid, and that, default having been made, it was entitled to immediate possession of the piano, and denied that complainant was entitled to a set-off as claimed. The case was tried on the bill and answer and agreed statement of facts, set out below, and resulted in a decree dissolving the temporary injunction and awarding damages, from which this appeal comes.

"Agreed Statement of Facts.

"It is admitted that the E. E. Forbes Piano Company, the defendant in the above-styled case, is a foreign corporation having its principal office and store in the city of Birmingham, state of Alabama.

"The capital stock of said corporation is five hundred thousand dollars, all paid in, and the corporation is solvent, and was solvent when the bill was filed in the above-styled case.

"That said corporation maintains a branch office and store in the city of Jackson, Miss., and has maintained the same for the past four years.

"That, some time after the said office was established in Mississippi, the E. E. Forbes Piano Company filed its charter with the secretary of state, in accordance with the provisions of chapter 45, Laws of Mississippi of 1900, now section 935 of the Mississippi Code of 1906, and the secretary of state, upon the payment of the fee provided in said section, duly certified that the said corporation had filed a copy of its charter, or articles of incorporation, as required by law.

"That the office and store of the said E. E. Forbes Piano Company in Jackson, Miss., is managed by C. J. Roberts, who is the agent of said corporation, and who has been in charge of the business of the said corporation in this city ever since said corporation established its present office and store in said city.

"That the said C. J. Roberts lives in the city of Jackson, first district of Hinds county, and that he has lived in said city for the past four years, and that he is now living in said city, and that he is now the agent and manager of said E. E. Forbes Piano Company.

"That the said E. E. Forbes Piano Company has carried in its storehouse in the city of Jackson, even since it has been established, a stock of goods, wares, and merchandise to the value of not less than seven thousand five hundred dollars.

"That it had a stock of goods, wares, and merchandise of the value of nine thousand five hundred dollars at the time the bill was filed and the injunction sued out in this cause, and that it now has in said city a stock of goods, wares, and merchandise of said value.

"It is agreed that, in case the injunction be dissolved, the defendant would be entitled to recover of the complainant the sum of twenty-five dollars on account of attorney's fees.

"It is agreed by attorneys for both complainant and defendant in the above-styled case that the foregoing agreed statement of facts may be read in evidence on the trial of the motion to dissolve the injunction heretofore issued in said cause."

Decree reversed injunction reinstated and cause remanded.

R. H. Thompson and J. H. Thompson, for appellant.

This was a suit to redeem from a lien, and the chancery court acquired jurisdiction because of that feature of the case. The piano company sold the property in controversy to J. N. McIntyre reserving a lien to secure the purchase money. In equity this was nothing more than a mortgage on the piano to secure the purchase money debt.

McIntyre was the principal owner, president and factotum of a corporation, known as the McIntyre Drug Company, and in dealings between them, the piano company became indebted to the drug company. McIntyre was the practically the owner of the drug company, and of the debts due to the drug company, and like many other people, he treated the corporation which he owned as identical with himself. When the piano company began an action or replevin to recover the piano in question, McIntyre, ascertaining that the legal title to the cause of action which the drug company as a corporation held against the piano company, was not in himself, took an assignment from the drug company, to himself, of that cause of action. Thereafter, he began this suit to redeem the piano from the lien of the piano company, and this suit to redeem was clearly, within the jurisdiction of the chancery court. The injunction of the action of replevin was a mere incident to the suit to redeem; but the chancellor and the counsel on the other side seem to have regarded the mere incident to the suit, the enjoining of the replevin, as the main controversy and to have ignored the principal thing, the suit of redemption; a suit wholly and purely equitable in its nature.

The complainant offered in his bill to pay whatever sum might be ascertained to be due, if anything, on the purchase money debt for the piano, and sought to litigate how much, if anything, was due. A court of equity certainly ought to have granted him this relief. If his failure to pay money into court was not sufficiently excused by the averments of his bill, a motion to require him to pay into court could and would have been sustained, but the injunction ought not to have been dismissed until complainant failed to pay as ordered by the court, especially since defendant is a non-resident. Upon the accounting, complainant would or would not have a right to credit for the cause of action which had been assigned to him by the drug company. This is the question he sought to litigate and the injunction should have remained in force until he could do so, if credit were given him for that cause of action, nothing would be due on the lien debt, the purchase money debt for the piano. If he were denied credit for the cause of action assigned to him by the drug company, he stood pledged by his bill to pay any balance found due the piano company in money. It follows, therefore we submit that the...